Dear Sir or Madam,
Yesterday, we wrote of constitutional conventions. There was some mention made of Re: Resolution to Amend the Constitution, in which the Supreme Court ruled on how conventions would determine how to amend the soon to be patriated Constitution.1 This is an example of a reference case. A reference case is when a government goes to the Supreme Court and requests that they rule whether or not a certain policy that they wish to turn into law is constitutional.
One of the most important references cases was Re: Secession of Quebec. This case filled an important gap left in the British North America Act in 1867. Once Confederation was established there was no way to deconfederate and allow a province to split off. Given how hard it was to establish Confederation this is actually quite reasonable. However, this meant that as tensions rose between Quebec and the federal government there was no process in place to determine what was an acceptable method for Quebec to leave. The Supreme Court was asked whether unilateral secession was possible, and ruled that secession could only happen after negotiations with the federal government. This was ruled on the grounds that one province leaving Confederation would affect all other provinces, so it would be undemocratic to allow it to do so.2 More importantly, the RSQ highlighted four fundamental tenets of the constitution: Federalism, Democracy, Constitutionalism and the Rule of Law, and Protection of Minority Rights. While the others are also enumerated in statute, much ink has been spilled with regards to the meaning and application of “Rule of Law”. To put it succinctly, it establishes a hierarchy of laws, with constitutional law at the top, being supreme over all others. Additionally, it requires adherence to principles such as predictability, in order to prevent arbitrary uses and abuses of power.
Highlighting the importance of federalism, the Supreme Court hears reference cases to decide jurisdiction. One example is Reference re: Regulation & Control of Aeronautics in Canada, decided by the British Privy Council in 1931 (that was our highest court at the time. To find out when and why that practice ended, make sure you keep reading: Judiciary Week is coming up!). This case established federal, rather than provincial, control over the then-new field of commercial aviation. The Privy council gave two major reasons for their decision. First, section 132 of the British North America Act gives the federal government power over everything related to international treaties. Since 1919, aviation was affected by international treaties, so it made sense for the federal government to regulate it in accordance with those treaties. Secondly, the beginning of s. 91, the “POGG clause”, charges the federal government "to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the classes of Subjects by this Act assigned exclusively to the Legislatures of the provinces". This catch-all means that anything that does not fit into a s. 92 provincial power must fit under federal jurisdiction.3 The “POGG” Power refers to the “Peace, Order, and Good Governance” of Canada.
The POGG Power is one of the most contested areas in Constitutional law. Often this comes down to an analysis of the POGG Power, which has been defined in three distinct branches. The original use of the POGG was for emergencies such as war and natural disasters. However, economic crises were added to the definition of “emergency” by the Supreme Court in 1975.4 The second, covered by the Aeronautics Reference, is the gap branch. New issues, such as technological innovations which were not discussed in the original BNA Act, are given to the federal government.5 The third branch, national concern, applies to anything that the federal government can prove is an issue that affects all Canadians and therefore cannot be decided on a provincial level. A good example of this is environmental legislation. This was declared federal jurisdiction by the Supreme Court in R v Crown Zellerbach, in which a company accused of polluting a waterway disputed the federal law it was charged under.6 This case is also interesting because it shows how the Supreme Court can shape constitutional interpretation at any time, even when it is not an official reference case.
Even when the text of the Constitution is left unchanged, its interpretation can make a great deal of difference to what governments are or are not allowed to do. There are gaps to fill and vague clauses to define. When Parliament finds themselves unsure as to how to proceed, these roles are taken on by the Supreme Court.
Your Humble Servants,
1Reference re: Resolution to Amend the Constitution,  1 SCR 753, 1 CRR 59 [Patriation Reference].
2Reference re: Secession of Quebec,  2 SCR 217, 51 CRR (2d) 1 [RSQ].
3Regulation and Control of Aeronautics, Re,  AC 54, 39 CRC 108 [Aeronautics Reference].
4Reference re: Anti-Inflation Act,  2 SCR 373, 68 DLR (3d) 452.
5Aeronautics Reference, supra note 3.
6 1 SCR 401, 49 DLR (4th) 161.